STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Petitioner, )

)

vs. )

)

THE LEARNING TREE CHILD ) DEVELOPMENT CENTER, INC., d/b/a ) THE LEARNING TREE CHILD CARE ) DEVELOPMENT CENTER AND )

PRISCILLA JOHNSON, )

)

Respondents. )

Case No. 06-3693

)

RECOMMENDED ORDER

On November 17, 2006, a formal administrative hearing in this case was held in Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stacy N. Robinson, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-114 Orlando, Florida 32801

For Respondent: Priscilla Johnson, pro se

The Learning Tree Child Care Development Center, Inc.

4540 South Orange Blossom Trail Orlando, Florida 32839

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 31, 2006, the Department of Children and Family Services (Petitioner) alleged that during an inspection conducted on August 21, 2006, The Learning Tree Child Care Development Center failed to meet certain minimum standards for operation of a child care facility. Ms. Priscilla Johnson, the owner and operator of the facility, disputed the allegations and filed a request for formal hearing with the Respondent. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits A through E and J through H admitted into evidence. Respondent Priscilla Johnson testified on behalf of herself and the facility.

The transcript of the hearing was filed on December 11, 2006. The Petitioner filed a Proposed Recommended Order on December 21, 2006.

FINDINGS OF FACT

1. The Learning Tree Child Care Development Center is a licensed child care facility owned and operated by Priscilla Johnson.

2. On August 21, 2006, Carmen Burruezo, an employee of the Petitioner, conducted an inspection of the facility and observed several violations of statutory requirements related to operation of a child care facility. An insufficient number of staff was present to comply with applicable staffing ratio requirements, certain transportation documentation was not available for review and the outdoor play area was in unsafe condition.

3. The inspector observed that only one staff person was in the area where 20 three-year-old children were located. According to staffing requirements, there must be one staff for every 15 three-year-old children in the area, and accordingly, an additional staff member should have been sharing supervisory responsibility for the children. The staffing violation was corrected during the course of the inspection.

4. At the hearing, the Respondent Johnson questioned how staffing ratios could be met during times when a staff member leaves an area for various reasons including using restroom facilities, but did not offer any evidence that the inspector's observations were incorrect.

5. During the inspection, the inspector attempted to review documentation of a vehicle inspection for the facility vehicle but none was available. Similarly, the inspector requested to review the vehicle driver's physician certification, but it was not available. Respondent Johnson provided such documentation to the Petitioner at a date subsequent to the inspection.

6. In the outside play area, the inspector observed that there was no resilient surface under the swing set, and that the resilient surface provided elsewhere (which consisted of padded mats) was not fitted together and, therefore, presented a tripping hazard to small children. The play area was completely exposed to the sun and no shaded area was available. The inspector also observed a broken bed frame and other discarded equipment within the playground area, and found the location of the debris to be unsafe. Respondent Johnson offered no testimony disputing these observations.

7. In previous inspections, the facility has been previously cited for the same types of infractions. Staffing ratio issues were cited in inspections dated April 21 and January 6, 2006. Inadequate transportation documentation was cited in an August 25, 2005 inspection. Unsafe playground issues were addressed in an inspection dated December 23, 2004.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

9. The Petitioner must demonstrate the truthfulness of the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

10. Section 402.305, Florida Statutes (2006) provides in relevant part as follows:

    
    

    402.305 Licensing standards; child care facilities.--

    
    

    (1) LICENSING STANDARDS.--The department shall establish licensing standards that each licensed child care facility must meet regardless of the origin or source of the fees used to operate the facility or the type of children served by the facility.

    
    

    * * *

    
    

    1. STAFF-TO-CHILDREN RATIO.--

       (a) Minimum standards for the care of children in a licensed child care facility as established by rule of the department must include:

       
       

       * * *

       4. For children 3 years of age or older, but under 4 years of age, there must be one child care personnel for every 15 children.

       
       

       * * *

       
       

    2. PHYSICAL FACILITIES.--Minimum standards shall include requirements for building conditions, indoor play space, outdoor play space, napping space, bathroom facilities, food preparation facilities, outdoor equipment, and indoor equipment. Because of the nature and duration of drop-in child care, outdoor play space and outdoor equipment shall not be required for licensure; however, if such play space and equipment are provided, then the minimum standards shall apply to drop-in child care. With respect to minimum standards for physical facilities of a child care program for school-age children which is operated in a public school facility, the department shall adopt the State Uniform Building Code for Public Educational Facilities Construction as the minimum standards, regardless of the operator of the program. The Legislature intends that if a child care program for school-age children is operated in a public school, the program need not conform to standards for physical facilities other than the standards adopted by the Commissioner of Education.

    
    

    * * *

    
    

    (7) SANITATION AND SAFETY.--

    1. Minimum standards shall include requirements for sanitary and safety conditions, first aid treatment, emergency procedures, and pediatric cardiopulmonary resuscitation. The minimum standards shall require that at least one staff person trained in cardiopulmonary resuscitation, as evidenced by current documentation of course completion, must be present at all times that children are present.

    2. In the case of a child care program for school-age children attending before and after school programs on the public school site, the department shall use the public school fire code, as adopted in the rules of the State Board of Education, as the minimum standard for fire safety. In the case of a child care program for school-age children attending before-school and after-school programs on a site operated by a municipality, the department shall adopt rules for such site and intended use.

       
       

    3. Some type of communications system, such as a pocket pager or beeper, shall be provided to a parent whose child is in drop- in child care to ensure the immediate return of the parent to the child, if necessary.

    
    

    * * *

    
    

    (10) TRANSPORTATION SAFETY.--Minimum standards shall include requirements for child restraints or seat belts in vehicles used by child care facilities and large family child care homes to transport children, requirements for annual inspections of the vehicles, limitations on the number of children in the vehicles, and accountability for children being transported.

    
    

11. The Petitioner has further codified the statutory requirements by adoption of Florida Administrative Code Chapter 65C-22.

12. Rule 65C-22.001(5) provides that for purposes of staffing ratio compliance "supervision" means "watching and directing children's activities within the same room," therefore a staff member who was absent from the room would not be counted towards meeting the required ratio.

13. Rule 65C-22.001(6) requires that a vehicle inspection report be available for any vehicle regularly used to transport the facility's children, and that the driver of such vehicle have a driver's license and an annual physical examination "which grants medical approval to drive."

14. Rule 65C-22.0012 sets forth the requirements for the facility's physical environment that include maintenance of a safe play area and provision of outdoor shade.

15. Section 402.310, Florida Statutes, provides that an administrative fine of up to $100 per violation, per day, may be imposed for violation of any provision of Section 403.305, Florida Statutes, or related rules.

16. There are three violations identified in the Administrative Complaint addressed herein, and a fine of $300 is

warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order imposing an administrative fine of

$300 against The Learning Tree Child Development Center d/b/a The Learning Tree Child Care Development Center and Priscilla Johnson.

DONE AND ENTERED this 10th day of January, 2007, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th of January, 2007.

COPIES FURNISHED:

Stacy N. Robinson, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite S-1114 Orlando, Florida 32801

Priscilla Johnson

The Learning Tree Child

Care Development Center, Inc. 4540 South Orange Blossom Trail Orlando, Florida 32839

Luci D. Hadi, Secretary

Department of Children and Family Services Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Copelan, General Counsel

Department of Children and Family Services Building 1, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk

Department of Children and Family Services Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-003693

Orders for Case No: 06-003693